Accused leaker's defense focuses on White House

7/31/13 7:05 PM EDT

The defense in the case of a former State Department intelligence analyst accused of leaking highly-classified information about North Korea is probing for evidence that the leak may have originated with or been compounded by top White House officials, according to recently-unsealed court documents.

Lawyers for Stephen Kim are focusing on how the National Security Council circulated the intelligence Kim is accused of providing to Fox News, on claims the intelligence was shared with NSC personnel not specficially authorized to receive it and on a mystery about who at the NSC apparently spoke to Fox's then-State Department reporter James Rosen in the minutes before he posted a June 2009 web story reporting that North Korea was planning a new nuclear test.

By citing Central Intelligence Agency "sources inside North Korea," the Fox report may have endangered one or more North Koreans cooperating with the U.S., intelligence experts have said.

In a legal motion posted here, Kim's defense specifically sought information from the government about any investigations of other classified leaks that may have involved three top officials: former Deputy National Security Adviser Denis McDonough, now White House Chief of Staff; former Deputy National Security Adviser John Brennan, now Central Intelligence Agency Director, and former NSC chief of staff Mark Lippert.

"All three senior officials have denied being the source of the unauthorized disclosure at issue...there is no evidence demonstrating otherwise [and] none of them has acknowledged even knowing about the intelligence prior to publication of the Rosen article," prosecutors wrote in an opposition brief (posted here). "This transparent attempt to drag three former senior White House officials into this matter based on rank speculation should be denied."

In an order issued in May and also unsealed last week, U.S. District Court Judge Colleen Kollar-Kotelly rejected most of the defense requests for additional information. However, she noted that the defense already has some data on how the NSC handled the matter. She also said she would be open to defense requests that were more narrow, such as requests for information on leak investigations involving Fox News or North Korea over a narrow timeframe. The defense recently issued new discovery requests, but the details remain under seal.

The White House-related issues, noted in a Washington Post story last week, seem likely to resurface if the matter ends up going to trial. That's currently scheduled to begin next April, but the judge said at a recent hearing that she'd like to start it sooner.

Before publishing his article, Rosen reached out to the White House. First, by apparently asking Fox's then-White House correspondent Major Garrett to let officials know the State Department reporter would be calling. Garrett wrote to McDonough, then the NSC's "strategic communications" czar, on the afternoon Rosen's story came out. Garrett told McDonough to expect "a call or an e-mail from a trustworthy colleague, James Rosen," who had "some very good stuff on North Korea," according to court records.

Two minutes after Garrett e-mailed, McDonough wrote back: "Got it."

About ten minutes later, Rosen called what the judge referred to as a number "associated with Mr. McDonough." Someone at the same number called Rosen back, but neither McDonough nor any other NSC staff member recalls doing so, court filings indicate.

The prosecution has indicated that 168 people are believed to have had access to the top-secret "compartment" which produced the information Kim is accused of leaking. However, the defense says an NSC staffer acknowledged that at least two NSC officials were given access to the report without having signed the appropriate non-disclosure agreement for that program. (They did have the necessary security clearance.)

In addition, the leak was discussed at a meeting held in the White House's Situation Room the day after Rosen's report, according to court documents. Two NSC officials with responsibility for North Korea, Jeffrey Bader and Daniel Russel, were also involved early on in assessing the leak and where it may have come from. Bader has since left the White House for the Brookings Institution. Russel was confirmed earlier this month as Assistant Secretary of State for East Asian and Pacific Affairs.

Despite the trail of tantalizing evidence for Kim's attorneys, prosecutors insist they have much stronger proof that Kim was the leaker. They note emails in which Kim and Rosen clearly struck up a reporter-source relationship. Prosecutors also have telephone records showing Kim on the phone with Rosen on the day of the report, as well State Department badge records showing the two men leaving and entering the building at times that appear to coincide on the same day.

Some of that evidence was obtained at significant long-term, practical cost to the Justice Department. When it became public that prosecutors obtained Rosen's emails by labeling him in court filings as a potential criminal co-conspirator, an outcry arose that investigators had gone too far. That led to questions that went all the way to President Barack Obama and to a revised Justice Department policy that reined in prosecutors' ability to investigate journalists in order to pursue charges against another person.

The recently-disclosed filings show that prosecutors used telephone call records to obtain information not only on who Rosen was calling or receiving calls from in the government, but also his contacts within Fox News. A couple of hours before the posting of his North Korea report, "Rosen placed calls to numbers associated with the Fox News Washington Bureau Chief, the Fox News Washington Bureau Vice President, and the Fox News Washington Bureau Assignment Editor," prosecutors allege. Rosen called the bureau chief again about 20 minutes later and eventually had a 20-minute conversation with someone in the bureau, prosecutors said.

Prosecutors have acknowledged in court filings that Kim, who's charged with one count of violating the Espionage Act by disclosing national defense information and one count of lying to investigators, has the right to argue to a jury that others may be responsible for the leak. However, the prosecution has accused the defense of attempting a kind of "process graymail," suggesting that Kim's legal team is trying to demand so much sensitive information that the prosecution effectively grinds to a halt.

The White House referred questions about the Kim case to the Justice Department, which declined to comment. CIA and Defense Department spokesmen also declined to comment, as did Kim's lead attorney, Abbe Lowell.

UPDATE (Wednesday, 8:09 P.M.): This post has been updated with DoD declining to comment.